As a long-time lurker on the HealthLawProf Blog, I want to thank Katharine Van Tassel for inviting me to guest blog during the month of June. My scholarship and primary interest are at the intersection of health law and constitutional law, especially reproductive rights, which will be the subject of my posts this month.

In this first post I’d like to explore the recent ACLU lawsuit challenging the Arizona state law that, among other things, prohibits anyone from providing an abortion “knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.” The complaint is available here.

Styled the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011,” the law seems to be premised on rather bizarre and racist notions. According to the complaint, the law was motivated by legislators’ beliefs that 1) the disproportionately high abortion rate among black women indicates that these women are intentionally de-selecting fetuses of their own race, possibly as a partial result of a plot by some abortion providers to eliminate African-Americans; and 2) sex-selective abortion is going to be a problem in Arizona simply due to the fact that the state has a growing Asian population, who are assumed to engage in the practice of de-selecting female fetuses through abortion. I haven’t ersonally reviewed the legislative history, but some of the quotes contained in the complaint are, frankly, shocking.

These sorts of laws raise all kinds of interesting issues, but I’d like to focus on two particularly interesting aspects of the complaint itself – one in this post and one in my next post.

First, it is notable that this law is challenged as a violation of the Equal Protection Clause, not the substantive due process right to privacy. The equal protection theory is that the law stigmatizes black and Asian women as either intentionally engaging in a form of gender and race genocide (against members of their own race and gender, no less). It is based on stereotypes and assumptions about members of particular races that are wholly unfounded. Therefore, it has a discriminatory purpose. It also has a discriminatory impact in that its effect will be to single out the abortion choices of black and Asian women for particular scrutiny.

This argument strikes me as fairly strong. Surely, there is a racial motivation behind this law, and it is hard to imagine that the legislature meant to raise doubts about the reproductive choices of white women in the same way. But it seems to me that there could be a privacy challenge to the law as well: the law regulates the subjective, personal reasons why a woman may choose abortion, which seems to fly in the face of the very notion of a right to “privacy.” Such a regulation is, to my knowledge, unprecedented since Roe v. Wade. Though this proposition has never been explicitly articulated by the Supreme Court, it seems to me that if the right to privacy in reproductive decision-making means anything, it means that individuals have the right to make those choices for whatever reason they deem appropriate, without government oversight or approval.

Or does it? Human rights advocates decry the practice of sex-selective abortion in other countries, and my understanding is that India’s ban on the practice is not generally considered controversial among feminists. Why, then, does the ban seem particularly troubling and off-key in the American context? Is it simply because there is no reason to think that the practice is widespread here? Or because our constitutional jurisprudence and popular discourse place abortion in a “privacy” framework, rather than an “equality” framework? In any case, I can’t help but wonder whether the philosophical difficulties that opposition to a sex-selective abortion ban might create for feminist lawyers is the reason why the ACLU attorneys chose to frame the complaint as they did.